M/s. Jeetender Gupta, Faridabad V. ACIT, Faridabad

CO 322/DEL/2010

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6731 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 1 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 10-10-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 15-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KUNAL NAGPAL
• Assessee Lawyers: JAYANT MISHRA
• Keywords: Principle of natural justice; Additional evidence; Non compliance; Assessment record
• Section: 133(6); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI K.D. RANJAN ITA NO. 3874/DEL/2010 ASSTT. YR: 2007-08 ACIT CIR. 1, FARIDABAD. VS. SH. JEETENDER GUPTA, H. NO. 150, SECTOR-7A, FARIDABAD. PAN/GIR NO. AHLPG7762M C.O. NO. 322/DEL/2010 ( IN ITA NO. 3874/DEL/2010 ) ASSTT. YR: 2007-08 SH. JEETENDER GUPTA, VS. ACIT CIR. 1, FARIDABAD. H. NO. 150, SECTOR-7A, FARIDABAD. (APPELLANT ) ( RESPONDENT ) DEPARTMENT BY : SHRI JAYANT MISHRA DR RESPONDENT BY : SHRI TARUN KUMAR & SHRI KUNAL NAGP AL ADV. O R D E R PER BENCH : THIS IS REVENUES APPEAL AND ASSESSEES CROSS-OBJEC TION AGAINST CIT(A)S ORDER DATED 15-6-2010 RELATING TO A.Y. 200 7-08. RESPECTIVE GROUNDS TAKEN ARE AS UNDER: ITA NO. 3874/DEL/2010 (REVENUES APPEAL) : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN COMMITTED I LLEGALITY BY FAILING TO CONSIDER ALL MATERIAL FACTS AND EVIDENCE BROUGHT ON RECORD THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE COULD NOT ESTABLISH THE GENUINENESS OF HIS CLAIM RE GARDING FIRE INCIDENT AND VERACITY OF HIS CLAIM OF LOSS OF HIS B OOKS OF ACCOUNTS DESPITE THE ASSESSEE WAS GIVEN NUMEROUS OP PORTUNITIES ITA 3874 & CO 322 JEETENDER GUPTA 2 AND FURTHER FAILED TO RECORD THE FINDING ON ALL THE OBJECTIONS RAISED IN REMAND REPORT AND EVEN ADMISSION OF ADDIT IONAL EVIDENCE WAS STRONGLY OPPOSED IN REMAND REPORT SUBM ITTED O THE LD. CIT(A). 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING TH E ADDITION OF RS. 2,24,45,752/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF VARIATION IN COMMISSION EVEN THOUGH THE ASSESSEE HA D FAILED TO PRODUCE ANY SUPPORTING DOCUMENTATION AS EVIDENCE, D ETAILS OF DEVELOPERS/ BUILDERS, TRANSACTIONS, ACCOUNTS, OR AN Y OTHER DOCUMENTATION THAT COULD SUPPORT THIS CLAIM DESPITE GRANTING NUMBER OF OPPORTUNITIES TO THE ASSESSEE WHICH RESUL TED INTO ADDITION ON ACCOUNT OF VARIATION IN COMMISSION. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING TH E ADDITION OF RS. 64,13,493/- MADE BY THE ASSESSING OFFICER ON AC COUNT OF COMMISSION DISCOUNT EXPENSES CLAIMED TO BE PAID BY THE ASSESSEE EVEN THOUGH THE ASSESSEE HAD FAILED TO SU BSTANTIATE THE VERACITY OF EXPENSES AND DELETED THE ADDITION WITHO UT DISCUSSING THE DISALLOWANCE ON THE GROUND OF GENUIN ENESS OF PAYMENT IN QUESTION IN HIS APPEAL ORDER WHICH GO TO THE VERY ROOT OF THE MATTER. 4. THAT THE APPELLANT CRAVES FOR THE PERMISSION TO ADD, DELETE OR AMEND THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF APPEAL. C.O. NO. 322/DEL/2010 : 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT DELETING THE ADDITION FULLY AS MADE BY LD. AO AND HAS FURTHE R ERRED IN SUSTAINING THE ADDITION TO THE EXTENT OF RS. 19,26, 640/- ON ACCOUNT OF ALLEGED DIFFERENCE BETWEEN COMMISSION AS PER TDS CERTIFICATE AND COMMISSION AS SHOWN IN THE PROFIT & LOSS ACCOUNT. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN C ONFIRMING THE ACTION OF LD. AO IN MAKING A DISALLOWANCE OF RS. 72 ,770/- OUT OF COMMISSION EXPENSES PAID TO SH. SURINDER GUPTA, ALLEGEDLY ON ACCOUNT OF THE SAME BEING NON VERIFIABLE. ITA 3874 & CO 322 JEETENDER GUPTA 3 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT DELETING THE ADDITION FULLY AS MADE BY LD. AO AND HAS FURTHE R ERRED IN SUSTAINING THE ADDITION TO THE EXTENT OF RS. 5,20, 023/- OUT OF COMMISSIONS EXPENSES ON ACCOUNT OF THE SAME BEING N ON VERIFIABLE. 4. THAT THE CROSS OBJECTOR CRAVES THE LEAVE TO AD, AMEND, MODIFY, DELETE ANY OF THE GROUND(S) OF CROSS OBJECT ION BEFORE OR AT THE TIME OF HEARING. 2. BRIEF FACTS ARE: ASSESSEE IS ENGAGED IN THE BUSI NESS OF REAL ESTATE AND CLAIMS TO EARN INCOME BY WAY OF COMMISSION ON BOOKI NG OF FLATS CONSTRUCTED BY REAL ESTATE DEVELOPERS. DURING THE COURSE OF ASS ESSMENT PROCEEDINGS AO OBSERVED DIFFERENCE BETWEEN THE COMMISSION INCOME S HOWN IN THE PROFIT AND LOSS ACCOUNT AND RECEIPTS SHOWN IN THE TDS CERTIFIC ATES. ASSESSEE WAS ASKED VIDE LETTER DATED 3.12.2009 TO RECONCILE THE DIFFER ENCE AND PRODUCE THE BOOKS OF ACCOUNTS IN SUPPORT THEREOF. IT WAS EXPLAINED BY THE ASSESSEE THAT BOOKS OF ACCOUNTS AND SUPPORTING DOCUMENTS WERE NOT READILY AVAILABLE AS THEY WERE DESTROYED IN THE FIRE WHICH BROKE OUT IN ASSESSEES PREMISES. ASSESSEE VIDE HIS LETTER DATED 17.12.2009 EXPLAINED THE REASONS O F DIFFERENCE BETWEEN THE FIGURE IN P & L A/C AND TDS CLAIM. 2.1. EXPLANATION OF THE ASSESSEE WAS REJECTED AND F OLLOWING ADDITIONS WERE MADE: I) NON RECONCILIATION OF TDS : RS. 2,43,72,392/- II) COMMISSION TO RELATIVES U/S 40A(2)(B) : RS. 11, 96,542/- III) COMMISSION TO OTHER PARTIES : RS. 20,75,809/ - IV) DISCOUNT TO CUSTOMERS : RS. 64,13,493/- V) TRAVELLING : 1,92,561/- VI) CAR & TELEPHONE MAINTENANCE : RS. 44,956/- 2.2. DISALLOWANCE WAS MADE BY AO MERELY ON THE GRO UND THAT THE DETAILS OF TDS & EXPENSES ETC. WERE NOT SUPPORTED BY VOUCHE RS AND COMMISSION ITA 3874 & CO 322 JEETENDER GUPTA 4 PAID. THERE WAS NON COMPLIANCE OF SECTION 40(A)(IA) , ASSESSMENT WAS, HOWEVER, FRAMED U/S 143(3). 2.3. AGGRIEVED ASSESSEE PREFERRED 1 ST APPEAL BEFORE CIT(A) AND FILED APPLICATION FOR ADDITIONAL EVIDENCE AS THE SAME COU LD NOT BE FILED BEFORE AO. PETITION FOR ADDITIONAL EVIDENCES WAS ALSO MOVED CI TING THE REASON OF FIRE AND CONSEQUENT DESTRUCTION OF RECORDS AND PRODUCING THE COMPILED INFORMATION AND DOCUMENTS GATHERED FROM EXTERNAL SO URCES ALSO. IT WAS PLEADED THAT THE EVIDENCES COULD NOT BE SUBMITTED B EFORE AO DUE TO DESTRUCTION OF RECORD BY THIS FIRE IN HIS PREMISES. EVIDENCE FROM FIRE AUTHORITIES CERTIFYING THIS FIRE INCIDENCE WAS ALSO FILED. CIT(A) FORWARDED THE ASSESSEES PETITION AND ADDITIONAL EVIDENCE TO AO FOR HIS COUNTER COMMENTS AND REMAND REPORT, THE SAME WAS DULY FILED BY AO. AFTER CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND AO S COUNTER SUBMISSIONS, CIT(A) ADMITTED THE ADDITIONAL EVIDENCE BY FOLLOWIN G OBSERVATIONS: 11. ONCE THE INCIDENCE OF FIRE IS ACCEPTED, THE NO N- PRODUCTION OF BOOKS OF ACCOUNTS AND OTHER RELEVANT DOCUMENTS BEFORE THE AO STANDS FULLY AND GENUINELY EXPLAINED, AS IT RESULTED IN THEIR DESTRUCTION AND HENCE THEIR LOSS. THE LD. A/R HAS MADE ALL OUT ATTEMPTS TO PRODUCE THE REMAINING DOCUMENTS AND DETAILS IN THE APPLICATION UNDER CLAUSES (B), ( C) AND (D) OF RULE 46A(1) AFTER COMPILING, COLLECTING AND COLLATI NG THEM FROM VARIOUS QUARTERS FROM PAGE 38 TO 799 OF P.B. SINCE THE AO HAD ASKED FOR SUCH NECESSARY EVIDENCES DURING THE COURS E OF ASSESSMENT PROCEEDINGS, THE APPELLANT COULD NOT PRO DUCE THEM ON ACCOUNT OF THE FIRE ACCIDENT WHICH STANDS TESTIF IED AS ABOVE. THEREFORE, THE APPELLANTS CASE FALLS UNDER THE CLAU SE (B) OF RULE 46A(1). SIMILARLY, SUCH ADDITIONAL EVIDENCES ARE GE NERIC FOR DISPOSAL OF ALL THE GROUNDS OF APPEAL AND THUS ARE COVERED UNDER THE PROVISIONS OF RULE 46A(1)(C). IN SUBMITTING THE SE DOCUMENTS AT THE APPELLATE STAGE, SUFFICIENT OPPORT UNITIES WERE NOT PROVIDED DURING THE REGULAR ASSESSMENT AND AS P ER CLAUSE (D) OF RULE 46A(1), THE PRINCIPLES OF NATURAL JUSTICE R EMAIN VIOLATED. ALL THINGS CONSIDERED THEN, THE CONDITION S PRESCRIBED ITA 3874 & CO 322 JEETENDER GUPTA 5 UNDER RULE 46A(1)(B), (C) AND (D) STAND SATISFIED U NDER THE GIVEN FACTS AND CIRCUMSTANCES. HENCE, AS PER MY POWERS UN DER RULE 46A(4) OF THE I.T. RULES, 1962, ALL OF THEM ARE AD MITTED FOR ADJUDICATION UNDER THOSE CLAUSES OF RULE 46A(1). 12. IN VIEW OF THE ABOVE DISCUSSION THEN, THE ADDIT IONAL EVIDENCES SUBMITTED BY THE LD. AR IN BOTH HER APPLI CATIONS UNDER RULE 46A(1) HAVING BEEN ADMITTED FOR ADJUDICA TION FOR ALL THE GROUNDS OF APPEAL, WERE TO BE SENT TO THE AO FO R EXAMINATION UNDER RULE 46A(3), AFTER REASONS HAVING BEEN RECORDED FOR THEIR ADMISSION UNDER RULE 46A(2) ABOV E. HOWEVER, AS IS EVIDENT FROM THE ABOVE PROCEEDINGS A ND RECORDS, THE AO WAS ALLOWED SUFFICIENT OPPORTUNITIES TO EXAM INE THESE ADDITIONAL EVIDENCES, BUT SHE HAS NOT BEEN ABLE TO STATE ANYTHING CONTRARY OR ADVERSE AGAINST THEM EXCEPT THAT SHE AH S HARPED UPON THE SAME AND ONLY ONE TUNE THAT THEY WERE NOT SUBMITTED DURING THE ASSESSMENT PROCEEDINGS. IN THIS REGARD, CLEARLY SHE HAS FAILED TO APPRECIATE THE PROVISIONS OF RULE 46A WHICH ARE FRAMED FOR THE FACILITATION OF THE ASSESSMENT PROCE SS AND ENSURE A REASONABLE AND EQUITABLE APPROACH FOR THE DETERMI NATION OF THE TOTAL TAXABLE INCOME OF ANY ASSESSEE, AS PER LA W AND RULES. THEREFORE, AFTER CONSIDERING THE AOS COMMENTS U/S 46A(3) DATED 23-4-2010 AND THE LD. ARS REPLIES, ESPECIALL Y IN HER LETTER DATED 21-5-2010, I PROCEED TO DECIDE THE VAR IOUS GROUNDS OF APPEAL AS BELOW. 2.4. AFTER ADMISSION OF ADDITIONAL EVIDENCE, CIT(A) CONSIDERED THE MERITS OF THE ADDITIONS/ DISALLOWANCES. IT WAS HELD THAT B OOKS OF ACCOUNTS WERE LOST IN FIRE AND NOT AVAILABLE TO THE ASSESSEE. THE INCO ME WAS TO BE ESTIMATED ON THE BASIS OF AUDITED STATEMENTS OF ACCOUNTS, INFORM ATIONS, ADDITIONAL EVIDENCE AND SUPPORTING MATERIAL, FILED BY ASSESS EE. THE RECONCILIATION FILED BY THE ASSESSEE EXPLAINING THE DEFERENCE BETWEEN TH E FIGURES OF COMMISSION IN HIS P & L A/C AND TDS CERTIFICATES WAS VERIFIED AND ACCEPTED BY CIT(A). VARIOUS ADDITIONS WERE DELETED RELEVANT EXTRACTS OF HIS ORDER ARE AS UNDER: ITA 3874 & CO 322 JEETENDER GUPTA 6 20. I HAVE CAREFULLY CONSIDERED THE CONTENTIONS OF THE LD. AR AND PERUSED THE IMPUGNED ORDER OF ASSESSMENT ALONG WITH THE ASSESSMENT RECORDS AND ALL THE MATERIAL PRODUCED IN THE SHAPE OF ADDITIONAL EVIDENCE AS WELL AS THE COLLATED INFORMATION GATHER ED BY THE LD. AR AND PLACED ON RECORD FROM THE AVAILABLE RESOURCES A ND DOCUMENTS AT THE BEHEST OF THE APPELLANT. IT IS OBSERVED THAT TH E AO HAS NOT COMMENTED ON THE ADMISSIBILITY AND GENUINENESS OF T HE EVIDENCES SUBMITTED U/R 46A. ALTHOUGH THE AO HAS BEEN CONSTAN TLY HARPING ON THE ABSENCE OF THE BOOKS OF ACCOUNTS FOR ASCERTAINI NG THE VERACITY OF THE APPELLANTS CLAIM IN RECONCILING THE DIFFERENCE ON ACCOUNT OF COMMISSION DECLARED IN THE P&L ACCOUNT AND COLLECTE D AS PER THE TDS CERTIFICATES, AND EVEN THOUGH THE APPELLANT THR OUGH HIS LD. AR HAS SUBMITTED THE REQUISITE BOOKS OF ACCOUNTS AND S UPPORTIVE DOCUMENTS TO MEET THE AOS SUCH OBJECTIONS, YET I A M OF THE CONSIDERED AND FIRM VIEW THAT SUCH DOCUMENTARY EVID ENCES PRODUCED IN THE SHAPE OF BOOKS OF ACCOUNTS UNDER RULE 46A, A RE NOT IN THEMSELVES INDISPENSABLE IN DETERMINING AND RECONCI LING THE DIFFERENCE OF RS. 2,43,72,392/-, SIMPLY BECAUSE THE TDS CERTIFICATES ARE IN THEMSELVES THE AUTHENTIC EVIDENCES (AND THOS E HAVE NOT BEEN FOUND DEFECTIVE OR UNRELIABLE BY THE AO HERSELF EIT HER) AND ALL OF THEM WERE DULY ANNEXED WITH THE RETURN OF INCOME FILED U /S 139(1). THE AO HAS NOT DECLARED THEM IN GENUINE AND HAS RATHER REL IED UPON THEM HERSELF IN REACHING OUT THE IMPUGNED DIFFERENCE.. A ND THUS THE REQUISITE AND NECESSARY RECONCILIATION COULD POSSIB LY AND COGENTLY BE MADE FROM SUCH DOCUMENTS ALREADY ON RECORD. THE VER Y FACT THAT THE AO HAD MADE VERIFICATIONS OF THE ASSESSEES TRANSAC TIONS AS REVEALED FROM THE TDS CERTIFICATES ACQUIRED FROM THE REALTOR S LIKE M/S RPS ASSOCIATES AND M/S OMAXE LIMITED U/S 133(6) OF THE INCOME TAX ACT, 1961, WHICH SUBMITTED THEIR ACCOUNTS CONFIRMING THE AMOUNT OF COMMISSION PAID, AND ALSO OTHER CONFIRMATIONS OF AC COUNTS LYING IN THE ASSESSMENT RECORDS, STRENGTHENS THE RELIABILITY AND ACCEPTANCE OF THE COMMISSION RECEIPTS DECLARED IN THE RETURNED TD S CERTIFICATES. THE SUBMISSIONS OF ADDITIONAL EVIDENCES UNDER RULE 46A IS ONLY TO MEET THE REQUIREMENTS OF THE ASSESSING OFFICER AND ARE C ONSIDERED TO BE SUPPLEMENTARY AND EXPLANATORY TO ALL THE MATERIAL A LREADY ON THE ASSESSMENT RECORDS. ACCORDINGLY, I HAVE EXAMINED TH E RECONCILIATION FIGURES OF COMMISSIONS INCOME AS SHOWN IN THE P&L A CCOUNT WITH THOSE OF THE TDS CERTIFICATES FROM VARIOUS DOCUMENT S SUBMITTED BY THE LD. AR ALONG WITH HER EXPLANATIONS AND THE AOS OBJECTIONS. ITA 3874 & CO 322 JEETENDER GUPTA 7 21. I HAVE GONE THROUGH THE RECONCILIATION OF INCOM E AND PARTY-WISE RECONCILIATION OF SUCH INCOME FOR THE ASSESSMENT YE AR 2007-08 SUBMITTED BY THE LD. AR AT PAGES 36 AND 37 OF THE P .B. I FIND THAT UNDOUBTEDLY, THE CREDITS AS PER TDS CERTIFICATES CL AIMED IN THE INCOME TAX RETURN (ITR) AMOUNT TO RS. 4,83,43,043/- AND IN COME BOOKED AS COMMISSION IN THE P&L ACCOUNT IS SHOWN AT RS. 2,39, 70,651/-. THE FIRST DIFFERENCE OF RS. 5,00,000/- HAS OCCURRED DUE TO CREDIT OF TDS CERTIFICATES WRONGLY CLAIMED THIS YEAR, WHICH IS E VIDENCED FROM THE CLAIM OF TDS AT RS. 28,050/- TWICE AS PER THE CERTI FICATE ISSUED BY M/S TRIVENI INFRASTRUCTURE DEVELOPMENT COMPANY ENCLOSED IN THE PB, AND HENCE NEEDS TO BE EXCLUDED FROM THE CREDITS REACHED AS PER THE ITR TDS CERTIFICATES. THE OTHER FACTORS CAUSING SUCH DI FFERENCE ARE THE FOLLOWING ITEMS INCLUDED IN TDS CERTIFICATES BUT DO NOT CONSTITUTE INCOME FOR THE YEAR UNDER CONTEXT:- (I) SERVICE TAX COMPONENT IN BILLING OF RS. 28,6 6,619/- ASSESSMENT YEAR 2007-08 (II) ADVANCES RECEIVED FROM TRIVENI RS. 1,32,29,6 86/- INFRASTRUCTURE DEVELOPMENT COMPANY (III) OUTSTANDING (CLOSING BALANCES OF RS. 44,30, 198/- A.Y. 2006-07 RECEIVED IN A.Y. 2007-08 (IV) COMMISSION REVERSED DURING THE YEAR ON RS. 12 ,29,345/- WHICH TDS DEDUCTED. (V) COMMISSION DISCOUNT RECEIVED FROM BPTP RS. 19, 26,640/- 22. I HAVE VERIFIED THE BILLS RAISED SHOWING SERVIC E TAX COMPONENT, THEIR COPIES, COPY OF SERVICE TAX LEDGER ALONG WITH ENTRIES IN THE TDS CERTIFICATES SHOWING DEDUCTION OF TDS ON GROSS AMOU NT FROM PAGES 36 TO 76 OF THE P.B. READ WITH THE FIGURES OF SALES TA X SHOWN IN THE P&L ACCOUNT AND COMPUTATION OF INCOME FOR THE ASSESSMEN T YEAR 2006-07. I FIND THE CONTENTIONS OF THE LD. AR IN THIS CONTEX T TO BE QUITE APPROPRIATE AND HENCE DEPENDABLE. FURTHER, I HAVE E XAMINED THE CONFIRMED COPIES OF ACCOUNT OF TRIVENI INFRASTRUCTU RE ALONG WITH THE LETTER DATED 15-12-2009 AT PAGES 114-120 OF THE P.B . ALONG WITH COMPUTATION OF INCOME, ACKNOWLEDGEMENT OF RETURN BA LANCE-SHEET AND PROFIT & LOSS ACCOUNT OF ASSESSMENT YEAR 2008-09 RE FLECTING THE INCOME OF RS. 146 LACS FROM M/S TRIVENI INFRASTRUC TURE IN FINANCIAL YEAR 2007-08 AT PAGES 138 OF THE P.B. I HAVE ALSO S TUDIED THE MOU WITH M/S TRIVENI INFRASTRUCTURE ALONG WITH SAMPLE B OOKING FROM (PB 139-140) AND THE DETAILS OF ALLOTMENT WITH ALLOTMEN T LETTER MADE IN THE FINANCIAL YEAR 2007-08 (PAGES 141-250 OF THE P.B.). ALL THESE ITA 3874 & CO 322 JEETENDER GUPTA 8 DOCUMENTARY EVIDENCES ON RECORD SHOW THAT INCOME BY VIRTUE OF SUCH ADVANCES FROM M/S TRIVENI INFRASTRUCTURE DID NOT CR YSTALLIZE IN THE YEAR UNDER REFERENCE, THOUGH TDS WAS MADE AS PER TH E PROVISIONS OF SECTION 194H OF THE INCOME TAX ACT, 1961. SINCE THE APPELLANT HAS SHOWN SUCH INCOME IN THE ASSESSMENT YEAR 2008-09, T HE AMOUNT OF RS. 1,32,29,686/- NOT BEING THE FINAL INCOME OF THE PRE SENT YEAR, SHOULD BE EXCLUDED FROM THE CREDITS AS PER TDS CERTIFICATES C OUNTED AND ENCLOSED IN THE ITR. 23. SIMILARLY, I HAVE GONE INTO THE CHART OF PARTYW ISE RECONCILIATION OF INCOME AS PER TDS CERTIFICATES AND AS PER P&L AC COUNT FOR ASSESSMENT YEAR 2007-08, ALONG WITH THE DETAILS SHO WING INCOME OF THE PARTIES FROM WHOM OPENING BALANCES RECEIVED IN THIS YEAR IN FINANCIAL YEAR 2005-06 BUT INCOME REFLECTED IN THE TDS CERTIFICATES ISSUED BY THEM SHOWING THAT THE BALANCE AMOUNT WAS RECEIVED IN THE IMPUGNED ASSESSMENT YEAR 2007-08, THOUGH THE COMMIS SION INCOME WAS BOOKED IN THE EARLIER YEARS (PAGES 105, 111-113 OF THE P.B). IN VIEW OF THE LD. ARS CLARIFICATIONS AS ABOVE, THE A MOUNT OF RS. 44,30,198/- SHOULD BE EXCLUDED FROM THE CREDITS ENC LOSED IN THE ITR OF THIS YEAR. S FAR AS THE AMOUNT OF RS. 12,29,345/ - IS CONCERNED, I HAVE PERUSED THE EVIDENCES (PAGES 251 TO 266 OF THE P.B.) SHOWING THE REVERSAL OF COMMISSION ON ACCOUNT OF CANCELLATION O F BOOKING ALONG WITH PARTY LEDGERS SHOWING PAYMENTS, CONFIRMED COMP ANY LEDGER SHOWING REVERSALS AND BANK STATEMENT OF ICICI BANK, FARIDABAD SHOWING PAYMENT OF COMMISSION HAVING BEEN REVERSED. SINCE THE TDS HAS ALREADY BEEN MADE ON SUCH REVERSED COMMISSI ON AND CLAIMED IN THE RETURN OF INCOME, IT SHOULD ALSO BE EXCLUDED FROM THE CREDITS OF TDS AS PER THE ITR. 24. I HAVE STUDIED THE COPY OF ACCOUNT OF BPTP IN T HE BOOKS OF THE ASSESSEE FOR THE FINANCIAL YEAR 2007-08 PERTAINING TO THE ASSESSMENT YEAR 2008-09 AND THE COPY OF THE BILLS RAISED TO BP TP BY THE ASSESSEE IN FINANCIAL YEAR 2007-08 (PAGES 269 TO 271). I FIN D THAT THE CONTENTIONS OF THE LD. AR IN THIS REGARD ARE NOT CO RRECT AND HENCE NOT TENABLE. THE SAID AMOUNT OF RS. 19,26,640/- HAD ACC RUED AS INCOME IN THE YEAR UNDER CONSIDERATION AND SINCE THE APPELLAN T IS FOLLOWING THE MERCANTILE SYSTEM OF ACCOUNTING REGULARLY IN THE PR EVIOUS YEARS ALSO, THE CREDITS OF RS. 19,26,640/- AS PER THE TDS CERTI FICATES FROM BPTP SHOULD BE ACCOUNTED FOR IN THE INCOME OF THE PRESEN T YEAR ASSESSMENT YEAR 2007-08, WHATEVER BE THE CIRCUMSTANCES, E.G. A S OUTLINED BY THE LD. AR ABOVE. THEREFORE, THE ADDITION TO THAT EXTEN T STANDS UPHELD. HENCE THE AMOUNT OF RS. 2,24,45,752/- (RS. 2,43,72, 392 RS. ITA 3874 & CO 322 JEETENDER GUPTA 9 19,26,640) HAVING BEEN FULLY EXPLAINED AS ABOVE, TH E ADDITION TO THAT EXTENT DESERVES TO BE CANCELLED. AGGRIEVED, BOTH THE PARTIES ARE BEFORE US, REVENUE HAS COME UP IN APPEAL AND THE ASSESSEE IS IN CROSS OBJECTION ON RESPECTIVE GR IEVANCES. 3. LD COUNSEL FOR THE ASSESSEE AT THE OUTSET CONTEN DED THAT REVENUE HAS NOT RAISED ANY SPECIFIC GROUND CHALLENGING ACTION O F CIT(A) U/R 46A ADMITTING THE ADDITIONAL EVIDENCE AND THEY HAVE CHA LLENGED HIS ORDERS ON MERITS ONLY. LD DR IN THE COUNTER CONTENDS THAT THE FIRST GROUND RAISED BY REVENUE TALK ABOUT THE AOS OBJECTION TO THE ADDITI ONAL EVIDENCE, THIS AMOUNTS TO RAISING THE GROUND AGAINST ADMISSION OF ADDITIONAL EVIDENCE. THOUGH IN SPECIFIC TERMS A SEPARATE GROUND HAS NOT BEEN TAKEN, THE OVERALL GROUND 1 MAY BE CONSTRUED TO AGITATE THE ADMISSION OF ADDITIONAL GROUND. 3.1. AFTER HEARING BOTH THE PARTIES WE ARE INCLINED TO ACCEPT THE CONTENTION OF LD CIT (DR) THAT THE ISSUE OF ADDITIONAL EVIDENC E IS BUILT IN THE GROUND TAKEN. REVENUE SHOULD HAVE BEEN DILIGENT IN TAKING A SPECIFIC GROUND ABOUT ADDITIONAL EVIDENCE. 4. ADVERTING TO MERITS, LD. CIT (DR) CONTENDS THAT ASSESSEE WAS DELIBERATELY AVOIDING THE PRODUCTION OF A/C BOOKS A ND INCIDENT OF FIRE IS A MAKE BELIEVE STORY TO AVOID THE SCRUTINY OF BOOKS. THE REPORT FROM FIRE BRIGADE WAS NOT PRODUCED BEFORE THE AO, BESIDES NO FIR WAS LODGED IN THE POLICE. THEREFORE CIT(A) SHOULD NOT HAVE ACCEPTED T HE ADDITIONAL EVIDENCE. 4.1. IT IS PLEADED THAT CIT(A) MERELY ON THE BASIS OF EVIDENCE AND DOCUMENTS FURNISHED BY ASSESSEE HAS DELETED THE ADD ITION, WITHOUT APPRECIATING THE FACTS THAT ASSESSEE WAS AVOIDING S CRUTINY OF BOOKS. CIT(A) CALLED FOR REMAND REPORT FROM AO, WHICH WAS DULY S UBMITTED, AO COULD NOT ITA 3874 & CO 322 JEETENDER GUPTA 10 CONDUCT PROPER INQUIRIES WHICH WERE HAMPERED BY NON -PRODUCTION OF BOOKS BY THE ASSESSEE. CIT(A) OUGHT TO HAVE CONDUCTED MOR E INQUIRES AND THE WITNESSES SHOULD HAVE BEEN CALLED TO VERIFY THE DOC UMENTS FILED BY THEY ASSESSEE. SINCE, THIS HAS NOT BEEN DONE, THE RELIEF TO ASSESSEE IS NOT PROPER. THE MATTER MAY BE SET ASIDE, RESTORED BACK, TO THE FILE OF AO TO ENABLE HIM TO CONDUCT PROPER INQUIRIES. 4.2. LD CIT(DR) FURTHER PLEADS THAT CIT(A) HAS CO-T ERMINUS POWERS OF ENQUIRY TO AO, BESIDES POWER TO CALL FURTHER ENQUIR ES. HOWEVER IN THIS CASE HE HAS FAILED TO EXERCISE HIS POWERS TO VERIFY AND CALL BEFORE HIM THE THIRD PARTY EVIDENCE OR WITNESSES FOR HIS EXAMINATION. WH AT COULD NOT BE DONE BY AO IN ASSESSMENT DUE TO NON PRODUCTION OF EVIDENCE, COULD HAVE BEEN ACCOMPLISHED BY CIT(A) BY CONDUCTING RELEVANT ENQUI RIES. IN THIS CASE EXCEPT CONSIDERING THE AOS REMAND REPORT, NO INDEPE NDENT ENQUIRY HAS BEEN CONDUCTED BY CIT(A). 5. ASSESSEE BY ORAL WRITTEN SUBMISSIONS CONTENDS TH AT ASSESSES BOOKS OF ACCOUNTS ARE DULY AUDITED U/S 44AB, THE RETURN OF I NCOME FOR THIS YEAR WAS ACCOMPANIED BY ALL THE RELEVANT STATEMENTS AND TDS CERTIFICATES. DURING THE COURSE OF ASSESSMENT THE INABILITY TO PRODUCE BOOKS OF ACCOUNTS CONSEQUENT TO FIRE WAS MADE KNOWN TO AO. ON VARIOUS QUERIES R AISED BY HIM ABOUT RECONCILIATION OF COMMISSION SAME COULD NOT BE COMPLIED, COLLECTED AND COLLATED BEFORE THE ASSESSMENT PROCEEDINGS. AND THA T ADEQUATE OPPORTUNITY WAS NOT GIVEN IN AS MUCH AS THE SHOW CAUSE WAS GIVE N ON 03/12/2009 AND ASSESSMENT ORDER WAS PASSED 23.12.2009 AND THE DETA ILS WERE COMPLIED ON THE BASIS OF LAST YEARS LEDGERS, CHEQUE BOOKS, COPY OF BANK STATEMENTS, COPY OF TDS CERTIFICATES, TDS RETURN, BOOKING RECORDS OF DEVELOPERS COMPANIES. BEFORE CIT(A) IT WAS SUBMITTED THAT IN ANY CASE THE SE EVIDENCE GO TO THE ITA 3874 & CO 322 JEETENDER GUPTA 11 ROOT OF THE MATTER AND IN VIEW OF PECULIAR CIRCUMST ANCES THESE SHOULD BE ADMITTED. 5.1. WHATEVER INFORMATION AND EVIDENCE COULD BE CO LLECTED WAS DULY FILED ALONG WITH EXPLANATION IN THE COURSE OF ASSESSMENT PROCEEDINGS. THEREAFTER BY HECTIC FOLLOW-UP AND EFFORTS ADDITIONAL EVIDENCE WAS PROCURED FROM THIRD PARTIES WHICH WAS FILED AS ADDITIONAL EVIDENCE. CIT (A) JUSTIFIABLY HELD THAT THE ASSESSEE, WAS THUS PREVENTED BY SUFFICIENT CAUS E IN PRODUCING THE REQUIRED COMPLIANCE BEFORE AO DUE TO THE FIRE WHICH IS CERTIFIED BY FIRE AUTHORITIES OF FARIDABAD. 5.2. ALONG WITH THE APPLICATIONS FOR ADDITIONAL EVI DENCE ASSESSEE SUBMITTED THE BILL RAISED BY THE FIRE DEPARTMENT FO R EXTINGUISHING THE FIRE, MEMORANDUM ISSUED BY THE FIRE STATION OFFICE, RECEI PT ISSUED BY FIRE STATION DEPT. AND ALL THESE DETAILS WERE OBTAINED WITH GREA T EFFORTS ON 04/05/2010 5.3. THERE IS NO JUSTIFICATION IN REVENUES RAISING DOUBTS ABOUT THE AUTHENTICITY OF REPORT. AO NEITHER CROSS VERIFIED T HE FIRE REPORT NOT CONDUCTED ANY FURTHER ENQUIRY. BY WAY OF SURMISES DOUBTS HAS BEEN RAISED ON FIRE DEPARTMENTS REPORT TO CREATE PREJUDICE ABOUT THE V ERACITY OF REPORT. THE REPORT BEING FROM COMPETENT FIRE AUTHORITY WHICH IS A GOVT. AGENCY, SAME CAN NOT BE HELD TO UNRELIABLE WITHOUT BRINGING ON R ECORD ADEQUATE MATERIAL. CIT(A) RELYING ON THIS REPORT AND AFTER CONSIDERIN G THE AOS OBJECTIONS AND REMAND REPORT ADMITTED THE ADDITIONAL EVIDENCE IN A CCORDANCE WITH RULE 46A. THEREFORE, THE ADDITIONAL EVIDENCE WAS RIGHTLY ACCE PTED BY CIT(A), HIS ORDER IS RELIED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS ON THE ISSUE OF ADMISSION OF ADDITIONAL EVIDENCE. IT HAS NOT BEEN DISPUTED THAT THE IN SUPPORT OF HIS CONTENTION ABOUT FIRE, ASSESSEE PRODUCED A CERTIFIC ATE FROM THE FIRE AUTHORITIES ITA 3874 & CO 322 JEETENDER GUPTA 12 AFFIRMING THIS FACT. FIRE DEPARTMENT IS A GOVT. DEP ARTMENT AND ITS CERTIFICATE CANNOT BE DOUBTED OR BRUSHED ASIDE AS AN AFTERTHOUG HT OF ASSESSEE, WITHOUT THERE BEING ANY EVIDENCE TO SUPPORT THE AOS SURMISE . UNDER THESE CIRCUMSTANCES ADMISSION OF ADDITIONAL EVIDENCE BY C IT(A) U/R 46A CANNOT BE FOUND FAULT WITH. MORE SO WHEN THE FIRE REPORT A ND EVIDENCE WAS DULY FORWARDED TO AO FOR HIS REMAND REPORT AND COUNTER C OMMENTS. AO DID NOT ADDUCE ANY EVIDENCE EXCEPT RAISING HIS UNFOUNDED DO UBT. IT IS UNDISPUTED THAT AO WAS PROVIDED OPPORTUNITY BY COMMISSIONER (A PPEALS) TO EXAMINE, VERIFY AND CONTROVERT THE ADDITIONAL EVIDENCES FILE D BY ASSESSEE. COMMISSIONER (APPEALS) HAVING TAKEN INTO ACCOUNT TH E OBJECTIONS OF THE ASSESSING OFFICER, THERE IS NO JUSTIFICATION IN THE STAND OF THE REVENUE. HENCE GROUND NO. 1 OF THE REVENUES APPEAL IS DISMISSED. 6.1. IN VIEW THEREOF WE UPHOLD THE ORDER OF CIT(A) ON ADMISSION OF ADDITIONAL EVIDENCE. 7. COMING TO REVENUES GROUND NO. 2, IT RELATES THE ADDITION OF RS.2,24,45,752/- MADE BY LD. A.O. ON ACCOUNT OF ALL EGED DIFFERENCE IN THE COMMISSION SHOWN I.E. I) COMMISSION AS PER TDS CERTIFICATES = RS.4,8 3,43,043/- AT A FIGURE OF II) COMMISSION INCOME IN = RS.2,39,70,651/- PROFIT & LOSS ACCOUNT III) THE DIFFERENCE COMES TO = RS. 2,43,72,392/- IV) OUT OF ABOVE AN ADDITION OF RS. 19,26,640/- HA S BEEN SUSTAINED BY LD. CIT(A) AND THE BALANCE AMOUNT OF RS.2,24,45, 752/- HAS BEEN DELETED. 7.1. REVENUE IS AN APPEAL AGAINST THE RELIEF OF RS. 2,24,45,752/- WHEREAS ASSESSEE IS IN CROSS OBJECTION FOR THE BALANCE AMOU NT OF RS.19,26,640/- ITA 3874 & CO 322 JEETENDER GUPTA 13 7.2. ASSESSEES RECONCILIATION OF DIFFERENCE IN TD S A/C IS AS UNDER:. I) DIFFERENCE DUE TO MISTAKENLY CLAIMED TWICE = RS. 5,00,000/- TDS CERTIFICATE ISSUED BY TRIVENI INFRASTRUCTURE DE VELOPMENT COM. LTD. (PB 46) DEDUCTING TDS ON 5,00,000 ON 15/0 1/2007, WAS TYPED TWICE IN COMPUTATION OF INCOME, BY MISTAK E WHICH WAS REDUCED FROM CLAIM. II) SERVICE TAX DUE TO ACCOUNTING DIFFERENCE BETWEEN ASSESSEE & DEDUCTORS =RS. 28,66,619 (A) ASSESSEE SUBMITTED BILL WISE DETAIL (PB 48 ) S HOWING GROSS AMOUNT OF BILL, SERVICE TAX INCLUDED THEREON, THE NET BILLING AMOUNT WHICH TALLIES WITH THE AMOUNT SHOWN IN THE P&L A/C ( PB 36) (B) COPIES OF ALL BILLS (PB 49-73) (C) COPIES OF SERVICE TAX LEDGER ACCOUNT (PB 74-75),SHO WING SERVICE TAX PAYABLE DURING THE YEAR AMOUNTING TO RS. 28,66, 619/-. (D) DETAIL RELATING TO A FEW BILLS CORRELATED WITH TDS CERTIFICATES TO SHOW THAT TDS HAS BEEN DEDUCTED ON GROSS AMOUNT OF THE BILL INCLUDING SERVICE TAX (PB 76) (E) AMOUNT OF RS. 44,30,198/- IS ATTRIBUTABLE TO INCOME OF PREVIOUS YEARS ON WHICH TDS HAS BEEN DEDUCTED IN THIS YEAR. THE INCOME HAS BEEN ALREADY (F) PARTY-WISE RECONCILIATION OF INCOME AS PER TDS CERT IFICATES AND AS PER P&L A/C FOR THE YEAR ENDED 31.03.2007 SHOWING T DS DEDUCTED ON OPENING BALANCES OF PARTIES AMOUNTING T O RS. 44,30,198/- (PB 37) (G) COPIES OF LEDGER ACCOUNT OF M/S OMAXE RPS, OMAXE & BPTP FOR THE YEAR ENDED 31.03.2006 SHOWING BALANCES OUTSTAND ING FOR THE RECEIPT, WHICH WERE RECEIVED DURING THE YEAR AND ON WHICH TDS WAS DEDUCTED (PB 107-110). ITA 3874 & CO 322 JEETENDER GUPTA 14 (H) DETAILS OF DEBTORS AND THEIR BREAKUP FOR THE YEAR E NDED ON 31.03.2006 AND LISTING THE ABOVE STATED DEBTORS AND THEIR AMOUNTS OUTSTANDING FOR RECEIPT (PB 91, 87) (I) AN AMOUNT OF 12,29,345/- IS ATTRIBUTABLE TO COMMISS ION INCOME REVERSED DURING THE YEAR (J) PARTY-WISE RECONCILIATION OF INCOME AS PER TDS CERT IFICATES AND AS PER P&L A/C FOR THE YEAR ENDED 31.03.2007 SHOWING T DS DEDUCTED ON OPENING BALANCES OF PARTIES AMOUNTING T O RS. 44,30,198/-( PB 37) (K) DETAILS OF COMMISSION REVERSED ON ACCOUNT OF CANCEL LED BOOKING (PB 251) (L) CIT(A) VERIFIED AL THESE DETAILS. ASSESSEE SUBMITTE D ITS ACCOUNT IN THE BOOKS OF OMAXE LTD. CONFIRMING REVERSAL OF COMM ISSION AMOUNTING TO RS. 5,26,253/- (PB 252-253) (M) ASSESSEE DESCRIPTIVE LEDGER ACCOUNT IS THE BOOKS OF OMAXE (PB 259-262) (N) LEDGER ACCOUNT OF BPTP IN THE BOOKS OF ASSESSEE SHO WING REVERSAL OF COMMISSION (PB 263 ) (O) COPY OF BANK ACCOUNT SHOWING RECEIPT OF COMMISSION REVERSED IN BANK (PB 265) 7.3. RS. 1,32,29,686/- DIFFERENCE IS ATTRIBUTABLE T O COMMISSION OF M/S TREVENI INFRASTRUCTURE DEVELOPMENT COMPANY LTD. WHI CH WAS IN EFFECT INCOME OF THE SUCCEEDING YEAR. 7.4. ASSESSEE SUBMITTED EACH AND EVERY DETAIL BEFOR E CIT(A) WHICH WAS FORWARDED TO AO FOR REMAND REPORT. AO HAS MADE COMM ENTS THEREON. CIT(A) HAS DELETED THE ADDITION AFTER DUE VERIFICAT ION. 8. REVENUES GROUND NO. 3 RELATES TO THE ADDITION OF RS.64,13,493/- MADE BY A.O. ON ACCOUNT OF COMMISSION AND DISCOUNT EXPENSES DELETED BY LD. CIT(A) ITA 3874 & CO 322 JEETENDER GUPTA 15 8.1. LD. A.O. HAS MADE THE ADDITION BY FOLLOWING OB SERVATIONS 7. COMMISSION DISCOUNT: DURING THE YEAR THE ASSES SEE CLAIMED AN EXPENSES OF RS. 6413493/- ON ACCOUNT OF COMMISSION DISCOUNT. VIDE THIS OFFICE LETTER DATED 03-12-2009 (Q. NO. 12) THE ASSESSEE WAS ASKED TO FURNISH DETAI LS OF COMMISSION DISCOUNT EXPENSES CLAIMED IN THE INCOME AND EXPENDITURE ACCOUNT. THE ASSESSEE HAS NOT FURNISHED NAMES AND ADDRESSES OF THE PARTIES/ PERSONS TO WHOM COMMISSIO N DISCOUNT WAS PAID. EVEN THE ASSESSEE HAS NOT SUBMITTED ANY EXPLANATION IN THIS REGARD. THE ASSESSEE FURNISHED THREE LETTER S DATED 15.12.2009, 17.12.2009 AND 18.12.2009 IN RESPONSE T O LETTER DATED 03-12-2009 BUT ON THE POINT OF COMMISSION DIS COUNT THE ASSESSEE KEPT MUM. IN THESE CIRCUMSTANCES IT IS PRE SUMED THAT THE ASSESSEE HAS NOTHING TO SAY IN THE MATTER. AS D ISCUSSED IN THE PARA 5 HEREINABOVE AND POINTED OUT BY THE AUDIT OR OF THE COMPANY, THE ASSESSEE HAS FAILED TO COMPLIED WITH T HE PROVISIONS OF CHAPTER XVII OF THE I.T> ACT, THEREFO RE, THE ALLOWABILITY OF EXPENSES ON ACCOUNT OF COMMISSION D ISCOUNT PAYMENT IN VIEW OF PROVISIONS OF SECTION 40A(IA) OF THE I.T. ACT PUTS A QUESTION MARK ON THE PAYMENT ON THIS ACCOUNT . THE ASSESSEE HAS FAILED TO PRODUCE THE BOOKS OF ACCOUNT S FOR VERIFICATION OF EXPENSE. IN THAT SITUATION THE CLA IM OF THE ASSESSEE REGARDING EXPENSES ON ACCOUNT OF COMMISSIO N DISCOUNT PAYMENT REMAINED UNVERIFIED. IN VIEW OF THE ABOVE, THE EXPENSES OF RS. 64,13,493/- ON ACCOUNT OF COMMISSIO N DISCOUNT PAID ARE DISALLOWED AND ADDED TO THE INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. FOR THE REASONS DISCU SSED ABOVE, PENALTY PROCEEDINGS U/S 271(1) F THE I.T. ACT ARE INITIATED FOR CONCEALMENT OF PARTICULARS OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME. 8.2. LD. CIT(A) CONSIDERED THIS ISSUE AS UNDER 31. I HAVE CAREFULLY CONSIDERED THE CONTENTIONS OF THE LD. AR AND PERUSED THE IMPUGNED ORDER OF ASSESSMENT. I HAV E ALSO GONE INTO THE NATURE OF REAL ESTATE BUSINESS CARRIED ON BY THE REALTORS. THE LD. AR HAS VERY COGENTLY EXPLAINED THE NATURE O F COMMISSION DISCOUNT ALLOWED BY REAL ESTATE AGENTS, WHICH IS NOT EXACTLY THE COMMISSION OR BROKERAGE AS ENVISAGE D UNDER THE ITA 3874 & CO 322 JEETENDER GUPTA 16 PROVISIONS OF SECTION 194H OF THE INCOME TAX ACT, 1 961. SINCE THE COMMISSION DISCOUNT IS ALLOWED TO THE CLIENTS WHO HAD BOOKED THE FLATS DIRECTLY AND IS THUS NOT COVERED U /S 194H. HENCE THE PROVISIONS OF SECTION 40(A)(IA) BECOME IN APPLICABLE TO THE INSTANT CASE. THEREFORE, THE DISALLOWANCE OF RS. 64,13,493/- STANDS DELETED. 8.3. IT IS PLEADED THAT ASSESSEE WORKS AS BOOKING A GENT FOR THE FLATS OFFERED FOR SALE BY REAL ESTATE DEVELOPERS IN THEIR PROJECT S AND EARNS COMMISSION INCOME FROM SUCH DEVELOPERS. DURING THE COURSE OF T HIS BUSINESS ACTIVITY SOME COMMISSION IS PASSED ON TO THE CUSTOMERS BY WA Y OF DISCOUNT. DURING THE YEAR ASSESSEE PASSED ON TO THE CUSTOMERS SUCH D ISCOUNT AGGREGATING TO RS.64,13,493/-. THE PAYMENT OF DISCOUNT WAS ESTABLI SHED BY THE ASSESSEE WITH THE HELP OF CONFIRMATIONS, BANK STATEMENTS, SH OWING PAYMENT MADE, TDS RETURNS, EVIDENCE OF THE BOOKINGS, E-MAIL COMMU NICATIONS ETC. 8.4. BEFORE LD. CIT(A )ASSESSEE MADE FOLLOWING SUBM ISSIONS LD. AO HAS DISALLOWED A SUM OF RS. 64,13,493/- ON ACCOUNT OF COMMISSION DISCOUNT EXPENSE ON THE GROUND THAT SUCH EXPENSES REMAINED UNVERIFIABLE AND NO EXPLANATION W AS SUBMITTED BY THE ASSESSEE AND THERE COULD BE DISALL OWANCE U/S 40(A)(IA) ALSO. IT IS RESPECTFULLY SUBMITTED THAT AS SUBMITTED ABOV E APPELLANT DOES BOOKINGS FOR THE DEVELOPERS IN THEIR PROJECTS AGAINST THE COMMISSION TO BE RECEIVED FROM THE DEVELOPERS. AS A MATTER OF TRADE PRACTICE AND ALSO AS A UNDERSTANDING WITH THE CUSTOMERS, A DISCOUNT IS REQUIRED TO BE PASSED TO THOSE CUSTOMER S AND THE AGGREGATE AMOUNT OF RS. 64,13,493/- REPRESENTS SUCH KIND OF DISCOUNT EXPENSES PASSED ON TO THE CUSTOMERS THEMSE LVES. ENCLOSED IN THE PAPER BOOK IS THE COMPLETE DETAILS OF SUCH EXPENSES, CONFIRMATIONS, BANK STATEMENT SHOWING PAY MENTS MADE, TDS RETURNS AND EVIDENCE OF THE BOOKING (APPL ICATION FOR ALLOTMENT) MADE BY THESE CUSTOMERS WITH THE DEVELOP ER THROUGH THE APPELLANT, E-MAIL COMMUNICATIONS WITH THE APPL ICANTS ITA 3874 & CO 322 JEETENDER GUPTA 17 PRESSING FOR DISCOUNT. ALL THESE EVIDENCES WOULD SH OW THAT IMPUGNED EXPENSE WAS AN EXPENSE INCURRED WHOLLY & EXCLUSIVELY FOR THE PURPOSE OF THE BUSINESS OF THE APPELLANT AND IS THUS ALLOWABLE. REGARDING THE DISALLOWANCE U/S 40(A)(IA), IT IS SUB MITTED THAT TDS WAS NOT REQUIRED TO BE DEDUCTED OUT OF SUCH PAY MENTS AS IT IS NOT COVERED WITH IN DEFINITION COMMISSION OR BR OKERAGE AS DEFINED U/S 194H. WITHOUT PREJUDICE TO ABOVE, IT IS SUBMITTED THAT IF IT IS HELD THAT SECTION 40(A)(IA) IS APPLICABLE, A SUM OF RS. 12,81 ,316/- WOULD BE THE SUM IN RESPECT OF WHICH THE TAX WAS NOT DEDU CTED/ DEPOSITED. IN FACT ALL THESE DETAILS AND EVIDENCES COULD NOT B E FILED BEFORE LD. AO DUE TO VARIOUS REASONS AS SUBMITTED IN PETIT ION FOR ADMISSION FOR ADDITIONAL EVIDENCES ALSO. ONE OF THE REASONS WAS THAT LD. AO ASKED ABOUT THESE DETAILS VIDE HER QUES TIONNAIRE DATED 03-12-2009 AND ASSESSMENT WAS FRAMED ON 23-12 -2009 AND THUS TIME ALLOWED WAS NOT SUFFICIENT. THE OTHER REASON WAS THAT DUE TO PART OF THE BOOKS OF ACCOUNTS HAVING BE EN DESTROYED, IT WAS NOT POSSIBLE TO COMPILE/ COLLATE ALL THE DE TAILS AND DATA TO BE FURNISHED BEFORE LD. AO WITH IN SUCH SHORT SPAN OF TIME. YOUR GOODSELF WOULD KINDLY APPRECIATE THAT WHEN BOO KS OF ACCOUNTS WERE NOT AVAILABLE, THERE IS NO OPTION WIT H THE ASSESSEE EXCEPT TO COMPILE THE RECORD WITH THE HELP OF LAST YEARS LEDGER, COPY OF CHEQUE BOOKS, COPY OF BANK STATEMENT, COPY OF TDS CERTIFICATE AND TDS RETURNS, BOOKING RECORDS OF THE DEVELOPER COMPANIES AND THAT IS WHAT HAS BEEN DONE BY THE APP ELLANT NOW AND IT TOOK SOME TIME AND DEFAULT HAPPENED DUE TO T HE REASONS BEYOND THE CONTROL OF THE APPELLANT. 8.5. ALL THE DETAILS OF DISCOUNT WERE FURNISHED WHI CH INCLUDE THE NAMES OF THE PARTIES / CUSTOMERS TO WHOM DISCOUNT WAS EXTEND ED, TDS DEDUCTED, NET AMOUNT AT APPEARING IN THE BANK STATEMENT . 8.6. COPY OF ACCOUNTS, BANK STATEMENTS ON ALL THE ISSUES I.E. ITA 3874 & CO 322 JEETENDER GUPTA 18 (I) DEVELOPERS FROM WHOM THE COMMISSION IS RECEIVED. (II) SUBAGENTS TO WHOM COMMISSION IS PAID. (III) DISCOUNT OFFERED TO CUSTOMERS. (IV) LIST OF ALL THE BOOKINGS. (V) DEALS WHICH ARE COMPLETED WITH THE NAMES, ADDRESSES OF PURCHASERS. 8.7. IT IS CLAIMED IN WRITTEN SUBMISSIONS THAT DEPA RTMENT HAS NOT RAISED THE ISSUE ABOUT DISALLOWANCE OF COMMISSION U/S40A(IA) I N THEIR GROUNDS OF APPEAL. THIS INDICATES THAT THE PARTICULARS OF COMM ISSION PAID AND TDS DEDUCTED THEREFROM SUBMISSIONS ARE ACCEPTED BY THE DEPARTMENT. 8.8. ASSESSEE THUS PLEADS THE CIT(A)S ORDER ON BOT H THE ISSUES ON MERITS IS BASED ON PROPER MATERIAL, REMAND REPORT, RECONCI LIATION AND EXPLANATION, THE RELIEF HAS BEEN GIVEN ON JUST AND PROPER CONSID ERATION. ORDER OF CIT(A) IS RELIED ON. 8.9. LD DR IN REJOINDER REPLIES THAT THE MAIN CASE OF THE REVENUE RESTS ON THE FACT THAT SO FAR ASSESSEE HAS NOT PRODUCED BOOK S OF ACCOUNT AND IN THE NAME DESTRUCTION OF BOOKS OF ACCOUNTS BY FIRE HE H AS NOT ALLOWED THE PROPER ENQUIRIES TO TAKE PLACE. CONSEQUENTLY THE MATTER MA Y BE SET ASIDE BACK TO THE FILE OF AO TO MAKE IN-DEPTH ENQUIRIES AND FRAME A F RESH ASSESSMENT. ALTERNATIVELY IT IS PLEADED THAT THAT THE RELIEF GI VEN BY CIT(A) IS EXCESSIVE THE SAME MAY BE REDUCED. 10. WE HAVE CONSIDERED THE RESPECTIVE ARGUMENTS, TH E ORDERS PASSED BY THE AUTHORITIES BELOW, REMAND REPORT AND COUNTER CO MMENTS SUBMITTED BY AO BEFORE THE LD CIT(A) AND WRITTEN SUBMISSIONS A ND CONTENTS OF PAPER BOOK. WE PROCEED TO DISPOSE THE MERITS ABOUT THE A PPEAL OF THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE IN THE FOLLOWIN G TERMS: ITA 3874 & CO 322 JEETENDER GUPTA 19 11. THE FIRST ISSUE RAISED BY REVENUE CHALLENGES TH E CIT(A)S FINDING THAT THE ASSESSEES BOOKS WERE DESTROYED IN FIRE AND THI S IS AN AFTER THOUGHT OF ASSESSEE TO AVOID SCRUTINY OF BOOKS. IN OUR CONSIDE RED OPINION, CIT(A) HAS GIVEN A FINDING OF FACT, BASED ON THE REPORT OF FIR E DEPARTMENT. THE SAME WAS SENT TO AO FOR REMAND REPORT. IF AO HAD ANY ISS UE IN THIS BEHALF, PROPER ENQUIRES COULD HAVE BEEN CONDUCTED BY HIM. THE FIRE DEPARTMENT OFFICER COULD HAVE BEEN CALLED. AO HAS NOT CARRIED OUT ANY ENQUIRY FROM HIS SIDE. THE REPORT OF A GOVT. DEPARTMENT WHICH IS SUBSTANTI ATED BY PAYMENT OF CORRESPONDING SERVICE CHARGES CANNOT BE BRUSHED ASI DE UNLESS THERE IS MATERIAL AGAINST IT. IN THESE CIRCUMSTANCES, CIT(A )S FINDING BEING BASED ON THE FACTS IS TO BE UPHELD. 11.1. BESIDES, NON-PRODUCTION OF BOOKS DO NOT STOP THE PROCESS OF INCOME TAX ACT; IN THIS EVENTUALITY BEST JUDGMENT ASSESSME NT U/S 144 IS THE ALTERNATIVE. AO IN ANY CASE RELIED ON THE ASSESSEE S AUDIT STATEMENTS AND PASSED THE ORDER U/S 143(3). CONSEQUENTLY, NO INTER FERENCE IS CALLED IN THE ORDER OF CIT(A), WHO DECIDED THE ISSUE ON MERITS AF TER CONSIDERING THE MATERIAL AVAILABLE ON RECORD. 11.2. CIT(A) HAVING PROPERLY ADMITTED THE ADDITIONA L EVIDENCE AND FORWARDED TO AO FOR REMAND HAS FOLLOWED A PROPER PR OCESS PRESCRIBED BY THE ACT. 11.3. IT CANNOT BE ASSUMED BY REVENUE THAT CIT (A) SHOULD HAVE CARRIED OUT THIS OR THAT KINDS OF INVESTIGATION. HAVING FOLLOWE D THE DUE COURSE PRESCRIBED BY THE LAW, WE ARE UNABLE TO HOLD THAT C IT(A) DID NOT CONDUCT PROPER ENQUIRIES. 11.4. NO USEFUL PURPOSE WILL BE SERVED IN SETTING A SIDE THE MATTER AS BOOKS OF ACCOUNTS ARE NOT AVAILABLE AND CANNOT BE MADE A VAILABLE. IN THESE CIRCUMSTANCES, THE APPEALS ARE TO BE DECIDED ON THE BASIS OF MATERIAL ITA 3874 & CO 322 JEETENDER GUPTA 20 AVAILABLE ON RECORD I.E. AUDITED STATEMENTS, ASSESS EES COMPLIANCE, RECONCILIATIONS, REMAND REPORT AND CIT(A)S FINDING S ON ISSUES. 12. COMING TO GROUND NO. 2 OF THE REVENUES APPEAL I.E. DIFFERENCE IN COMMISSION IN P &L A/C AND TDS CERTIFICATES; IT IS SEEN THAT ADDITION WAS MADE BY AO TO THE TUNE OF RS. 22445752/- ON THE GRO UND OF VARIATION IN AMOUNT OF COMMISSION AS MENTIONED IN TDS CERTIFICAT ES AND IN THE PROFIT AND LOSS ACCOUNT. OUT OF THE SAID ADDITION, CIT(A) SUSTAINED A SUM OF RS. 1926640/- AND DELETED THE BALANCE AMOUNT. DURING TH E COURSE OF 1 ST APPEAL, THE DIFFERENCE HAS BEEN RECONCILED AND EXPLAINED BY THE ASSESSEE WHICH HAS BEEN CONSIDERED BY COMMISSIONER (APPEALS); AOS REMA ND REPORT AND COMMENTS HAVE BEEN CONSIDERED. 12.1. THIS DIFFERENCE IN COMMISSION AS PER THE EVID ENCES AVAILABLE IN THE PAPER BOOK IS ON ACCOUNT OF WORKING OUT THE AMOUNT OF RS. 5 LACS BASED ON DOUBLE TYPING OF FIGURE OF TDS OF RS. 28050/- IN TH E COMPUTATION OF INCOME. CONSEQUENTLY, NO ADDITION CAN BE MADE IN THIS BEHAL F. 12.2. OTHER DIFFERENCE AS EXPLAINED BY THE ASSESSE E AND EXAMINED BY CIT(A) BASED ON THE EVIDENCES IN THE PAPER BOOK IS ATTRIBUTED TO SERVICE TAX COMPONENT INCLUDED IN THE BILLING RESULTING INTO TH E DIFFERENCE OF RS. 2866619/-. THIS HAS BEEN AMPLY DEMONSTRATED THAT IN ASSESSEES ACCOUNTS SERVICE TAX IS SEPARATELY CREDITED AND NOT INCLUDED IN COMMISSION ACCOUNT. ASSESSEE HAS FILED PROPER RECONCILIATION IN THIS B EHALF HENCE, THIS DIFFERENCE ALSO STANDS RECONCILED BY ASSESSEE. 12.3. OTHER REASON OF DIFFERENCE IS A SUM OF RS. 1 3229686/- WHICH IS CLAIMED TO BE RECEIVED AS ADVANCE FROM TRIVENI INF RASTRUCTURE DEVELOPMENT COMPANY ON WHICH TDS WAS DEDUCTED BY THE SAID COMPA NY ON PAYMENT BASIS WHILE PAYING THE AMOUNT AS PER THE REQUIREMEN T OF SECTION 194H. HOWEVER THIS INCOME, ACCORDING TO ASSESSEE PERTAINE D TO NEXT YEAR AND IS ITA 3874 & CO 322 JEETENDER GUPTA 21 FACTUALLY OFFERED TO TAX BY THE ASSESSEE IN NEXT YE AR. THIS WAS MATTER OF RECORD AS BY THE TIME REMAND REPORT WAS SUBMITTED B Y AO THE RETURN FOR NEXT ASST. YEAR WAS ALREADY ON RECORD. IN THE ABSENCE OF ANY PERTINENT COMMENT FROM AO IT IS TO BE IMPLIED THAT THIS VERSION IS CO RRECT. CIT(A) HAS GIVEN PROPER FACTUAL FINDINGS THAT SUCH DIFFERENCE HAS B EEN OFFERED TO TAX BY THE ASSESSEE IN THE PROFIT AND LOSS ACCOUNT FOR THE A.Y . 2008-09. 12.4. IT IS FURTHER SEEN THAT AN AGGREGATE AMOUNT OF RS. 4430198/- WAS THE AMOUNT RECEIVED IN THE YEAR UNDER APPEAL BUT WHICH WAS PERTAINING TO EARLIER YEAR AND THAT IS WHY THERE WAS NO QUESTION OF THIS AMOUNT ACCOUNTING FOR AS INCOME IN THE YEAR UNDER APPEAL. 12.5. OTHER COMPONENT OF RS. 1229345/- REPRESENTS INITIAL COMMISSION RECEIVED BY THE ASSESSEE ON BOOKING, DUE TO CANCELL ATION OF SUCH BOOKINGS, SUCH COMMISSION WAS TO BE REVERSED. THIS COMMISSION WAS NOT BE ACCOUNTED FOR AS INCOME IN SUCH PECULIAR FACTS AND CIRCUMSTAN CES DUE TO CANCELLATION; THIS FACT HAS NOT BEEN CONTROVERTED BY AO IS HIS RE MAND REPORT. CIT(A) HAS CONSIDERED THE EXPLANATION, RECONCILIATION AND HAS GIVEN ADEQUATE FACTUAL FINDINGS EXPLAINING THIS DISCREPANCY AND AS A CONSE QUENCE THEREOF SUSTAINED THE ADDITION TO THE TUNE OF RS. 1926640/-. IN THE A BSENCE OF ANY CONTRARY COMMENTS IN REMAND REPORT OR THE REVENUE ARGUMENTS WE SEE NO INFIRMITY IN THE ORDER OF CIT(A) IN ALLOWING PART RELIEF. ASSESS EE IS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING AND THUS THE SUM OF RS. 192664 0/- HAVING ACCRUED IN THE YEAR IS TO BE TAXED AS THE INCOME OF THE ASSESS EE FOR THE YEAR UNDER APPEAL. ASSESSEE MAY MAKE A CLAIM FOR RELIEF OF THI S INCOME IN ACCORDANCE WITH PROVISIONS OF LAW IN A.Y. 2008-09. 12.6. REVENUES GROUND NO. 2 OF ITS APPEAL AND COR RESPONDING GROUND NO.1 OF ASSESSEES CROSS OBJECTION BOTH ARE DISMISSED. ITA 3874 & CO 322 JEETENDER GUPTA 22 13. ADVERTING TO THE REVENUES GROUND NO. 3, AS AL READY MENTIONED ASSESSEE IS BOOKING AGENT FOR THE FLATS IN REAL EST ATE DEVELOPER PROJECTS AND EARNS COMMISSION FROM SUCH DEVELOPERS. ASSESSEE HAS PROVED THE EXPENSE IN QUESTION BY LEADING VOLUMINOUS EVIDENCES FILED IN T HE PAPER BOOK AND REFERRED IN THE SYNOPSIS FILED AT THE TIME OF HEARI NG & CONSIDERED BY US. WE FIND THAT THE EXPENSE IN QUESTION WAS THE EXPENDITU RE INCURRED DURING THE COURSE OF CARRYING ON THE BUSINESS OF THE ASSESSEE. ASSESSEE HAS FILED PERSON WISE DETAILS AND EVIDENCES TO WHOM SUCH DISCOUNT WA S ALLOWED BY IT, VARIOUS SUPPORTING DOCUMENTS AND EVIDENCE HAVE BEEN REFERRE D TO ABOVE. 13.1. ITAT DELHI IN THE REVENUES APPEAL NO. 477/DE L/2011 WHILE DEALING WITH THE CASE OF REAL ESTATE AGENT ALLOWED SIMILAR CLAIM BY FOLLOWING OBSERVATIONS: 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND MERIT IN THE ARGUMENTS OF THE LEARNED COUNSEL FOR THE ASSESSEE. THE DEALS OF DISC OUNT CLEARLY SHOW THAT AGAINST THE BOOKING OF BUILDERS, ASSESSEE GAVE A PORTION BY WAY OF DISCOUNT TO THE CONSUMERS/ CUSTOM ERS. THE ASSESSEE HAS MAINTAINED PROPER DETAILS IN RESPECT O F SUB- BROKERAGE ON WHICH TDS HAS BEEN DEDUCTED AND DISCOU NT TO CONSUMERS I.E. IMPUGNED PAYMENTS. THE SAME BEING DI SCOUNT IS NOT LIABLE FOR TDS AS HELD BY THE ASSESSING OFFICER . IN OUR VIEW, THE CIT(A) HAS GIVEN PROPER REASONS FOR ACCEP TING THE ASSESSEES PLEA. WE FIND NO INFIRMITY IN THE ORDER OF CIT(A) AND THE SAME IS UPHELD. 13.2. IN OUR VIEW DEPARTMENT EXCEPT POINTING OUT SO ME SUSPICION, AND RAISING A SPECIOUS PLEA THAT AO SHOULD BE GIVEN OP PORTUNITY TO ENQUIRE IT AGAIN AND CIT(A) SHOULD HAVE CONDUCTED FURTHER ENQU IRIES AND CALLED THESE PERSONS, WHICH IN OUR VIEW CANNOT BE ACCEDED. CONSE QUENTLY, THIS GROUND OF REVENUE IS DISMISSED. ITA 3874 & CO 322 JEETENDER GUPTA 23 14. WE MAY LIKE TO OBSERVE THAT THE INCOME TAX ACT IS A COMPLETE CODE IN ITSELF. IT PRESCRIBES ADEQUATE PARAMETER FOR DEALIN G WITH ASSESSMENTS IN WHICH COMPLETE INFORMATION WAS NOT AVAILABLE WITH A O. IN SUCH CIRCUMSTANCES, IDEALLY AO SHOULD MAKE A BEST JUDGME NT ASSESSMENT U/S 144; IN THIS CASE THE ASSESSMENT HAS BEEN FRAMED U/S 143 (3). IT IS NOT THE CASE OF DEPARTMENT THAT DURING THE ASSESSMENT ASSESSEE DID NOT CO-OPERATE, DOCUMENTS IN HIS POSSESSION WERE FILED AND ASSESSME NT RECORD OF A.Y. 2006- 07 WAS AVAILABLE.. FROM RECORD IT EMERGES THAT ASSE SSEE SUBMITTED POSSIBLE EVIDENCE, RECONCILIATION AND THIRD PARTY CONFIRMATI ONS, WHICH COULD BE OBTAINED BEFORE ASSESSMENT. 15. THE EVIDENCE AND INFORMATION IS FORWARDED BY CI T(A) TO AO. THE INCOME TAX ACT CONTEMPLATES THAT THE AO BEING ENTRU STED WITH THE JOB OF ASSESSMENT WILL VERIFY THE INFORMATION FROM DEPARTM ENTAL RECORD, SUMMONING THIRD PARTIES AND EXAMINING THE EVIDENCE. IF FURTHER TIME IS NEEDED IT WOULD HAVE BEEN ALLOWED BY CIT(A), IN THI S CASE NO SUCH REQUEST FOR TIME HAS BEEN MADE BY AO. THE REVENUES PLEA IS THAT THOUGH AO DID NOT DISCHARGE THESE FUNCTIONS, CIT(A) SHOULD HAVE S UMMONED THE WITNESSES AND CONDUCTED FURTHER ENQUIRIES. CIT(A) IS AN APPEL LATE AUTHORITY AND LAW HAS CONFERRED CO-TERMINUS POWERS LIKE AO, THIS DOE S NOT MEAN THAT CIT(A) WILL GO ON MAKING ASSESSMENTS WHILE DISPOSING THE A PPEALS. IF THE EVIDENCE, REMAND REPORT, COMMENTS AND ASSESSES EXPLANATION EN ABLE HIM TO DECIDE THE ISSUE, LAW ALLOWS HIM TO DECIDE THE ISSUES IN APP EAL. A POWER CONFERRED BY LAW, MAKING AN APPELLATE AUTHORITY MORE FUNCTIONAL CAN NOT BE INTERPRETED TO MAKING HIM AS ASSESSING OFFICER. BESIDES IN THIS CA SE ASSESSEE PRODUCED VOLUMINOUS EVIDENCE IN SUPPORT OF HIS CLAIM. IN VIE W OF THE FOREGOINGS WE ARE UNABLE TO ACCEDE TO REVENUE REQUEST THAT MATTER MAY BE SET ASIDE TO AO ITA 3874 & CO 322 JEETENDER GUPTA 24 FOR FRESH ENQUIRIES OR CIT(A) MAY BE DIRECTED TO SU MMON WITNESSES AND ENQUIRIES BE CONDUCTED. 16. THE MATERIAL/ INFORMATION AND CONFIRMATIONS HAV E NOT BEEN DISPUTED TO BE OF THE BUSINESS OF THE ASSESSEE I.E. REAL EST ATE BROKERAGE BUSINESS. TDS IS DEDUCTED AND PAID AS PER LAW WHICH IS SUBSTANTIA TED. REVENUE HAS NOT RAISED THE GROUND OF SECTION 40(A)(IA) IN ITS GROUN D OF APPEAL. REVENUE EXCEPT RAISING SUSPICIONS COULD NOT INDICATE ANY V ALID BASIS TO REJECT THESE DOCUMENTARY EVIDENCES. THUS WE DO NOT FIND ANY INFI RMITY IN THE RELIEF ALLOWED AND WE HOLD THAT THERE WAS NO JUSTIFICATION FOR MAKING THE DISALLOWANCE. HENCE THIS GROUND OF APPEAL OF THE RE VENUE IS ALSO REJECTED. 17. ADVERTING TO THE ASSESSEES CROSS OBJECTION LD. COUNSEL OF THE ASSESSEE COULD NOT MAKE OUT AS TO WHY GROUND NO. 2 AND 3 OF THE CROSS OBJECTION BE DECIDED IN HIS FAVOUR. IF THE ASSESSEE S BOOKS ARE NOT AVAILABLE FOR VERIFICATION FOR ANY REASON, AN ELEMENT OF ESTI MATE IS NECESSARY. IN THESE CIRCUMSTANCE, NO INTERFERENCE IS CALLED FOR IN CIT( A)S ORDER. HENCE, THESE GROUNDS OF CROSS OBJECTIONS ARE DISMISSED. 18. IN THE RESULT, REVENUES APPEAL AND ASSESSEES CROSS OBJECTIONS BOTH ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 16-12-2011. SD/- SD/- (K.D. RANJAN ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16-12-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR ITA 3874 & CO 322 JEETENDER GUPTA 25